United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS UNITED STATES DISTRICT JUDGE
before this Court are Defendant's four related motions:
his Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. § 2255 (ECF No. 83), his Motion to Amend
his § 2255 Motion (ECF No. 86), his first Amendment to
his § 2255 Motion (ECF No. 92), and his second Amendment
to his § 2255 Motion (ECF No. 105).
to an Order issued on March 7, 2016, this action was referred
to United States Magistrate Judge Dwane L. Tinsley for
proposed findings of fact and recommendation for disposition.
ECF No. 84. On January 14, 2019, the Magistrate Judge
submitted proposed findings and recommended that this Court
deny Defendant's motions and dismiss this civil action
from the Court's docket. Proposed Findings and
Recommendation, ECF No. 108, at 14. Defendant now
objects to the findings and recommendation. Objections to
Proposed Findings and Recommendations, ECF No. 109
[hereinafter Objections]. For the reasons below, the
Court adopts the proposed findings and recommendations of
Magistrate Judge Tinsley, denies Defendant's motions, and
dismisses this action from the Court's docket.
Plea and Sentencing
February 25, 2014, Defendant Demetrius Thomas was named in an
indictment charging various controlled substance offenses.
Indictment, ECF No. 16. Throughout his district
court proceedings, Defendant was represented by
court-appointed counsel, Sebastian M. Joy. See
Transcript, ECF Nos. 66, 68.
5, 2014, Defendant entered into a written plea agreement in
which he pleaded guilty to one count of distribution of
heroin, in violation of 21 U.S.C. § 841(a)(1).
Agreement, ECF No. 43. In the written plea agreement
Defendant expressly waived his right to appellate review of
his conviction and his sentence-so long as the sentence did
not exceed the maximum statutory penalty prescribed by
law-and waived his right to a post-conviction collateral
attack-except for any claim based upon ineffective assistance
of counsel. Id. at ¶ 10.
5, 2014, Defendant pleaded guilty, in accordance with the
written plea agreement, to the charge in the indictment. ECF
Nos. 39, 42, 46. This Court conducted a thorough plea
colloquy in accordance with Rule 11 of the Federal Rules of
Criminal Procedure, including receiving Defendant's
acknowledgement of the rights he was waiving and his
satisfaction with his attorney's representation.
Transcript, ECF No. 66, at 7. Additionally, this
Court specifically discussed with Defendant the appellate and
collateral attack waivers, and Defendant acknowledged that he
understood the effects of the waiver provision and the effect
of his guilty plea. Id. at 11- 12.
August 4, 2014, Defendant appeared for sentencing.
Transcript, ECF No. 68. This Court determined that
Defendant's total offense level under the United States
Sentencing Guidelines was 29, with a criminal history
category of VI, yielding a guideline range of 151-188 months
of imprisonment. Id. at 5. This calculation included
an enhancement under U.S.S.G. § 4B1.1 after this Court
found that Defendant qualified as a career offender based
upon two prior controlled substance offenses. Id. at
4-5. However, this Court varied downward from the guideline
range and sentenced Defendant to 120 months of imprisonment,
followed by supervised release for three years. Id.
at 17-19. A Judgment was entered on August 6, 2014. ECF No.
then appealed to the United States Court of Appeals for the
Fourth Circuit. ECF Nos. 59, 62. However, his attorney, Mr.
Joy, filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), stating that he believed there were no
meritorious grounds for appeal, but questioning whether the
sentence was reasonable. Opinion, ECF No. 72, at 2.
Defendant filed a pro se supplemental brief in which he
asserted the following: (1) his guilty plea was not knowing
and voluntary; (2) his sentence was not reasonable; (3) he
was improperly designated as a career offender; and (4) his
counsel provided ineffective assistance of counsel.
February 24, 2015, the Fourth Circuit affirmed
Defendant's conviction and sentence. United States v.
Thomas, No. 14-4656, (4th Cir. Feb. 24, 2015). The Court
held that Defendant's guilty plea satisfied Rule 11 of
the Federal Rules of Criminal Procedure and was knowing,
voluntary, and supported by a sufficient factual basis.
Opinion, at 2-3. The Court also found that
Defendant's sentence was reasonable. Id. at 3.
However, the Court declined to address Defendant's claims
of ineffective assistance of counsel, finding that because
there was no evidence of ineffective assistance of counsel on
the face of the record, the claim was better suited for
review in a § 2255 motion. Id. at 5.
Motion to Vacate Arguments
March 3, 2016, Defendant, acting pro se, filed his
first motion-a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255. ECF No. 83. In
the motion, Defendant asserts the following two grounds for
relief: (1) ineffective assistance of counsel during plea